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Five Facts About the Annual Gag Clause Prohibition Compliance Attestation

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  1. Effective December 27, 2020, the Consolidated Appropriations Act, 2021 (“CAA”), as part of its transparency in health care protections, prohibits group health plans and issuers from entering into agreements that directly or indirectly restrict them from: (1) providing cost or quality of care information to referring providers, the plan sponsor, participants, or individuals eligible to become participants; or (2) accessing deidentified claims and encounter information with respect to participants; and (3) sharing information described in (1) or (2) with a HIPAA business associate.

  1. Such “gag clauses” may be found in agreements between a group health plan or issuer and any of the following parties: (1) a health care provider; (2) a network or association or providers; (3) a third party administrator (“TPA”); or (4) another service provider offering access to a network of providers.

  1. Group health plans and issuers must annually submit to the Departments of Labor, Health and Human Services, and Treasury (“Departments”) an annual Gag Clause Prohibition Compliance Attestation (“Attestation”).  The first Attestation is due no later than December 31, 2023, covering the period beginning December 27, 2020 through the date of Attestation.  Subsequent Attestations are due by December 31 of each year thereafter.

  1. If a plan is self-insured, it can rely on another entity (e.g., a TPA or pharmacy benefit manager) to submit the Attestation if the plan enters into a written agreement with the entity that indicates that they will attest on the plan’s behalf.  However, if the other entity fails to do so, the legal requirement to provide the Attestation remains with the plan.  If a plan is insured, it can rely on the issuer to submit the Attestation.

  1. The Departments launched a website for submitting the Attestations and have issued instructions, a system user manual, and a reporting entity excel template.  

For more information regarding the principal requirements under the CAA that apply to employer-sponsored group health plans, see our updated CAA Chart.